State  v. Fisher

• Decision Date: 09 November 2011
• Docket Number: No. 25745.,25745.
• Citation: 2011 S.D. 74,805 N.W.2d 571
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Christopher Brian FISHER, Defendant and Appellant.
• Court: South Dakota Supreme Court

2011 S.D. 74

805 N.W.2d 571

STATE of South Dakota, Plaintiff and Appellee,

v.Christopher Brian FISHER, Defendant and Appellant.

No. 25745.

Supreme Court of South Dakota.

Argued Oct. 3, 2011.Decided Nov. 9, 2011.

Marty J. Jackley, Attorney General, Matt T. Roby, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Nicole Laughlin, Minnehaha County Public, Defender's Office, Sioux Falls, South Dakota, Attorneys for defendant and appellant.

SEVERSON, Justice.

[¶ 1.] Christopher Brian Fisher was convicted of manslaughter following the death of a fifteen-month-old child. He appeals, raising the following issues: (1) Whether the trial court erred in failing to suppress incriminating statements Fisher made during an interview with law enforcement; (2) Whether the trial court erred in admitting a portion of a videotaped interrogation where Fisher is depicted shaking a doll with the image of the doll redacted; (3) Whether the trial court erred in finding that Dr. Nancy Free, one of the state's expert witnesses, was qualified to testify about abusive head trauma. We affirm.

Background

[¶ 2.] On November 25, 2008, Fisher moved into a mobile home with his girlfriend, Amanda Vensand. Amanda was the mother of two children, eight-year-old S.V. and fifteen-month-old P.V. On the night of November 26, 2008, Fisher agreed to supervise Amanda's two children while Amanda went out with her friends. Fisher had known Amanda's children for approximately one month but had not taken care of them alone for an entire night.

[¶ 3.] A little before 5:00 a.m., Fisher awoke to a coughing or choking sound coming from P.V. He noticed that P.V. was not responding and was barely breathing. Fisher attempted to contact both his sister and Amanda. When he was unable to reach them, Fisher called 911. Paramedics and police personnel arrived shortly thereafter and transported P.V. to Avera McKennan hospital. Despite repeated attempts at resuscitation, P.V. was pronounced dead at 6:07 a.m.

[¶ 4.] That same morning, Fisher was taken to the law enforcement center to be interviewed by Detective Bakke. The interview began with Detective Bakke reading Fisher his Miranda rights, which Fisher waived. Detective Bakke then asked Fisher how P.V. behaved over the last forty-eight hours. Fisher explained that P.V. fell while roughhousing with older boys the day before. Fisher also stated that P.V. was battling a “bug” and vomited on himself when Fisher was putting him to bed. While Fisher was giving him a bath, P.V. fell in the bathtub and hit his head on a toy boat. Fisher suggested that these accidents may have caused P.V.'s injuries.

[¶ 5.] At 9:43 a.m., an hour into the interrogation, Detective Bakke took a twelve-minute break. At 9:55 a.m., Detective Bakke returned to the interrogation room and informed Fisher that he spoke with the doctors who treated P.V. Detective Bakke told Fisher these doctors examined P.V.'s eyes and observed retinal hemorrhaging and retinal detachment, which Detective Bakke said was a sign that P.V. was shaken. Detective Bakke also stated that the doctors told him P.V.'s injuries could not have been caused by the accidents Fisher described.

[¶ 6.] In actuality, P.V.'s retinas were not detached and Detective Bakke did not speak directly to P.V.'s doctors. Detective Webb, another detective involved with the investigation of P.V.'s death, spoke to the doctor that treated P.V. at the emergency room. Detective Webb also spoke with a doctor who examined P.V.'s body after his death. During a break in the interview with Fisher, Detective Webb told Detective Bakke that the doctors did not believe P.V.'s injuries could have been caused by the accidents Fisher described.

[¶ 7.] Fisher continued to insist he never shook P.V. or caused the child any harm. Detective Bakke suggested Fisher take a polygraph examination to confirm his account of the events leading up to P.V.'s death. Fisher agreed. Detective Bakke contacted Detective Walsh to perform the polygraph examination. Fisher was transferred to another interview room containing the polygraph equipment. Detective Walsh provided Fisher with a consent form, which Fisher carefully read before singing. The results of the polygraph test indicated that Fisher was being deceptive.

[¶ 8.] After failing the polygraph examination, Fisher told Detective Walsh that he fell while carrying P.V. into the bedroom. Detective Bakke then reentered the room and questioned Fisher about the fall. Upon being questioned by Detective Bakke about the fall, Fisher explained that he actually fell while he was carrying P.V. into the kitchen. Detective Bakke continued to question Fisher's story. Finally, Fisher stated that P.V. fell from the counter of the bathroom sink while Fisher was doing laundry.

[¶ 9.] At about 2:15 p.m., Detective Bakke brought a miniature doll into the interrogation room. Detective Bakke gave the doll to Fisher and asked him to demonstrate how he shook P.V. Fisher initially refused but Detective Bakke continued to urge Fisher to take the doll. Fisher eventually took the doll and demonstrated how he held P.V. by the shoulders and shook him. Fisher stated that he shook P.V. approximately four times, and that he could hear P.V.'s teeth clicking together as his head snapped back and forth. Fisher confessed that he shook P.V. because he would not quit crying.

[¶ 10.] The interview lasted approximately six hours. Fisher slept only two to three hours the night before and was emotional during much of the interview. Fisher did not eat during the interview but was offered beverages. He was also given cigarette and bathroom breaks.

[¶ 11.] Fisher was charged with one count of murder in the second degree and one count of manslaughter in the first degree. Prior to trial, Fisher filed a motion in limine, seeking to have the video of Fisher's interview with Detective Bakke excluded from evidence. The court allowed the video of the interview to be admitted, provided that the image of the doll was redacted.

[¶ 12.] Fisher also filed a Daubert motion in which he asserted Dr. Nancy Free, one of the State's expert witnesses, was not qualified to testify regarding her opinion of the cause of P.V.'s injuries. Dr. Free is a board certified pediatric physician associated with Child's Voice, a child advocacy center that evaluates children who may be victims of abuse or neglect. Dr. Free does not perform autopsies or sign death certificates. However, she has regularly given opinions based on autopsy reports and has consulted on over 500 cases for Child's Voice.

[¶ 13.] After reviewing Dr. Free's qualifications, the trial court determined Dr. Free was qualified to testify regarding the cause of P.V.'s injuries. At trial, Dr. Free testified that she believed P.V.'s injuries were the result of abusive head trauma, which she described as a set of injuries consistent with non-accidental trauma. Dr. Free testified that abusive head trauma could result from a sudden impact or from violent shaking. She further testified that a fall in the bathtub or a fall from a countertop would not have been sufficient to cause P.V.'s injuries.

[¶ 14.] Fisher's expert, a forensic pathologist named Dr. Janice Ophoven, offered a different opinion. Dr. Ophoven testified that shaking alone could not have caused P.V.'s injury and that the scientific community has questioned whether shaking alone can cause abusive head trauma.

[¶ 15.] At the conclusion of the trial, the jury found Fisher guilty of manslaughter. He was sentenced to serve sixty years in the South Dakota State Penitentiary.

DECISION

[¶ 16.] 1. Whether Fisher's confession to Detective Bakke was voluntary.

[¶ 17.] Fisher claims that the confession to Detective Bakke was involuntary and the result of coercion. Accordingly, Fisher argues that the trial court erred in failing to suppress the confession. In reviewing a trial court's ruling on the voluntariness of a confession, “ ‘we consider the totality of the circumstances, giving deference to the trial court's factual findings, but performing a de novo review of the record....’ ” State v. Carothers, 2006 S.D. 100, ¶ 23, 724 N.W.2d 610, 619 (quoting State v. Tofani, 2006 S.D. 63, ¶ 30, 719 N.W.2d 391, 399). However, the ultimate issue of whether the confession was voluntary is a legal question which we review de novo. State v. Ralios, 2010 S.D. 43, ¶ 24, 783 N.W.2d 647, 655 (citing State v. Tuttle, 2002 S.D. 94, ¶ 20, 650 N.W.2d 20, 30).

[¶ 18.] “The State has the burden to prove by a preponderance of the evidence that a defendant's admissions were voluntary.” Id. (citing Tuttle, 2002 S.D. 94, ¶ 21, 650 N.W.2d at 30). In analyzing whether the state has met its burden of establishing voluntariness, we examine:

(1) the conduct of law enforcement officials in creating pressure and (2) the suspect's capacity to resist that pressure. On the latter factor, we examine such concerns as the defendant's age; level of education and intelligence; the presence or absence of any advice to the defendant on constitutional rights; the length of detention; the repeated and prolonged nature of the questioning; the use of psychological pressure or physical punishment, such as deprivation of food or sleep; and the defendant's prior experience with law enforcement officers and the courts. Finally, [d]eception or misrepresentation by the officer receiving the statement may also be factors for the trial court to consider; however, the police may use some psychological tactics in interrogating a suspect. State v. Wright, 2009 S.D. 51, ¶ 33, 768 N.W.2d 512, 524 (quoting State v. Cottier, 2008 S.D. 79, ¶ 19, 755 N.W.2d 120, 129).

[¶ 19.] The presence or absence of one of the above referenced factors is not dispositive. State v. Morato, 2000 S.D. 149, ¶ 13, 619 N.W.2d 655, 660. “Ultimately, ‘the voluntariness of a confession depends on the absence of police overreaching.... Confessions are not deemed voluntary if, in...